In a recent decision, the Federal Court of Australia has clarified the relationship between the Fair Work Act right of entry provisions and right of entry provisions under State safety legislation. It  confirmed a union official seeking to exercise a right of entry under State safety legislation is required to hold and provide to the site operator a valid right of entry permit. This decision closes a perceived 'loophole' regarding right of entry for safety matters. 

Australian Building and Construction Commissioner's civil penalty proceedings 

The Australian Building and Construction Commissioner (ABCC) commenced civil penalty proceedings against eight respondents, including the CFMMEU and six union officials in relation to alleged contravention of the right of entry provisions of the Fair Work Act.

The matter related to events on the Bruce Highway Update Project in Queensland which was being undertaken by a joint venture between Fulton Hogan Construction and Seymour White Construction (Joint Venture). As part of the safety plan on the project, the Joint Venture had site OHS requirements which required, amongst other things, that all visitors to the site were to be fully accompanied by an inducted Joint Venture representative and only authorised personnel were to access exclusion zones.

During the period 8 March 2018 to 18 April 2018, the CFMMEU officials sought to access the worksite on eight occasions, including every week day between 9 and 18 April 2018 on the basis of section 81 of the Queensland Work Health and Safety Act. Section 81 dealt with dispute resolution processes in relation to safety matters and allowed the representative of a party to an issue in dispute to enter the workplace for the purposes of attending discussion in relation to resolving the safety issue.

On each occasion the CFMMEU officials were asked, and refused, to provide their entry permits prior to accessing the site. Notwithstanding this refusal, on each occasion the officials accessed the Site in breach of the Site OHS requirements and despite being told they were not permitted to enter. On several occasions, the officials were arrested by police and charged with trespassing (while these charges were ultimately dropped on public interest grounds, there does not appear to be a dispute that sufficient evidence existed to proceed with these charges). 

The ABCC brought the civil penalty proceedings against the union officials on the basis that they had contravened section 494 or section 497 of the Fair Work Act 2009 (Cth), which required the production of an entry permit where a permit holder sought to exercise right of entry pursuant to a State OHS right, and that the CFMMEU was accessorily liable for the individual contraventions. 

Clarifying the relationship between Federal and State right of entry provisions 

The Federal Court noted that this matter hinged on whether or not section 81 of the WHS Act provided a 'State OHS right' for the purposes of the Fair Work Act. If it did, then the union officials were required to provide an entry permit when seeking access to the site. If not, then no entry permit was required. 

The Court, in finding that section 81 was a 'State OHS right':

• Affirmed the 2017 decision of the Full Federal Court in ABCC v Powell [2017] FCAFC 86, including that industrial safety and employment legislation needs to work in a practical way and should be interpreted in a manner that is not productive of fine distinctions concerning the characterisation of entry on to a site;
• Noted that any statutory entitlement or authorisation which permitted entry onto a workplace could legitimately be described as a 'right of entry' irrespective of the rights or entitlements the person had once they gained entry, or the purpose for which the entry is permitted;
• Noted that the purpose of section 494 of the Fair Work Act was to regulate the activities of official's that had the potential to significantly interfere with the employer's right to go about their business with minimal inconvenience. The entry of officials onto a work site, even if for the purposes of discussions, had the potential to have a significant impact on operations as was demonstrated in this case, by the officials causing a two hour work stoppage by blocking a bridge. 

Accordingly, the Court was satisfied that in purporting to exercise the right to enter site pursuant to section 81 of the WHS Act, the officials were exercising a 'right of entry' for the purposes of the Fair Work Act and were required to produce an entry permit. 

Further, the Court was satisfied that the conduct of the officials once on site, in refusing the produce the permit, leave the site and follow the directions of the employer, was improper conduct within the meaning of section 500 of the Fair Work Act which prohibits a permit holder from hindering or obstruction any person or otherwise acting in an improper manner. 

In respect of the CFMMEU, the Court said that it was an accessory to each contravention as it was aware of and knowingly concerned in the conduct which occurred. Accordingly, it was liable for that conduct.

In light of these findings, the Court granted injunctive relief and has ordered the matter to be set down for penalty proceedings. 

This case reinforces the recent decisions making clear that the Fair Work Act provisions regulating right of entry extend to any state based laws which authorise a union official to enter a site. This means that irrespective of the basis on which a right of entry is being sought, the Fair Work Act provisions will apply, including the requirement to hold a produce a valid entry permit. 

Given the disruption that can arise from the exercise of a right of entry, employers should ensure they have a clear protocol for dealing with right of entry requests to ensure that any such request is lawful and exercised in a manner that minimises workplace disruption. This process should be clearly followed and documented on each occasion a right of entry is sought. 

The proper collection and documenting of evidence will support an employer in obtaining relief where improper behaviour is occurring. As such, all relevant managers or supervisors on site should receive instruction in responding to and documenting events during a right of entry. 

Please contact us if you would like further guidance or assistance with preparing a right of entry protocol, manager training or assistance in responding to and dealing with right of entry issues.